Part

4 International transactions, Ch.14 Treaties,

Form and Parts of Treaties
Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th edition)

Edited By: Sir Robert Jennings QC, Sir Arthur Watts KCMG QC

Content type: Book content Product: Oxford Scholarly Authorities on

Published in print: 19 June 2008 International Law [OSAIL]
ISBN: 9780582302457

Subject(s):
Treaties, reservations and declarations — Treaties, entry into force

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 (p. 1207) Form and Parts of Treaties
Satow, International Congresses (Foreign Office Peace Handbook) (1920), pp 20–32 Report of
Mastny and Rundstein for the League Codification Committee, AJ, 20 (1926), Special Suppl, pp 205–
18 Harv Research (1935, pt III), pp 722–39 Devaux, RIF, i (1936), pp 299–309 Mervyn Jones, BY, 21
(1944), pp 111–22 UN Legislative Series, Laws and Practices concerning the Conclusion of
Treaties (1953) McNair, Treaties, pp 7–34 Higgins, The Development of International Law through
the Political Organs of the United Nations (1963), pp 254–9.

§ 585 Form of treaties

International law prescribes no necessary form for treaties. The Vienna Convention on the Law of
Treaties defines ‘treaty’ as an agreement ‘in written form’.1 This does not prejudice the legal force
of an oral agreement or the application thereto of any rules of the Convention to which they would
be subject under international law independently of the Convention.2 In modern practice, treaties
are in writing and are usually3 signed by duly authorised representatives of the contracting parties.
While the more formal treaty instruments tend to follow a similar pattern4 there is no required
standard form.5 The parties are free to agree upon the language or languages in

References

(p. 1208) which the treaty is expressed, and upon which (if any) of them is to be regarded as
authentic or as prevailing in case of dispute.6 In the Temple of Preah Vihear Case (Preliminary
Objections) the International Court of Justice said that ‘Where … as is generally the case in
international law, which places the principal emphasis on the intention of the parties, the law
prescribes no particular form, parties are free to choose what form they please provided their
intention clearly results from it.’7

§ 586 Acts, conventions, declarations, exchanges of notes, etc

International agreements may be given a variety of designations, such as treaties, agreements,
Acts, conventions, declarations1 and protocols.2 These various designations are used in no
consistent manner.3 Although the designations may indicate the level of importance which the
parties attach to an instrument, designation alone4 does not in international law5 affect the binding
force of the instrument or its characterisation as a treaty; this is made clear in Article 2.1(a) of the
Vienna Convention on the Law of Treaties. In the South West Africa Cases (Preliminary Objections)
the International Court of Justice said: ‘Terminology is not a determinant factor as to the character
of an international agreement or undertaking. In the practice of States and of international
organisations and in the jurisprudence of international courts, there exists a great variety of usage;
there are many different types of acts to which the character of treaty stipulations has been
attached’.6 Apart from the more obvious types of such Acts, mentioned above, even an unsigned

References

(p. 1209) and uninitialled document such as a press communiqué may constitute an international
agreement.7
Consequently, states cannot avoid an instrument being a treaty merely by giving it a title
suggesting otherwise. They may, however, still adopt instruments which do not constitute treaties,
provided that as a matter of substance and not of mere nomenclature the instruments are
appropriate to such a conclusion.8 This is

References

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 (p. 1210) particularly important in the case of exchanges of notes. Diplomatic notes are often sent
in the normal course of diplomatic business and notes in reply are just as often returned. Some
such exchanges — but by no means a majority — take a form9 such that the two notes taken
together constitute an agreement, and it is these which fall within the definition of ‘treaty’ for
purposes of the Vienna Convention.10 The entry into force of exchanges of notes constituting an
agreement is frequently stated to be dependent upon signature alone, without any need for
ratification, and this practice makes this manner of recording an agreement particularly suitable
where the expeditious conclusion and execution of an agreement is required, or for the regulation
of technical or less important matters for which a more formal instrument might be inappropriate.

§ 587 Parts of treaties

International law lays down no rules concerning the arrangement of the parts of treaties. However,
in the more formal treaties the following order is usually observed. After the title,1 a first part, known
as the preamble,2 comprises the names of the contracting parties (and sometimes their duly
authorised representatives), and the motives for the conclusion of the treaty.3 A second part
consists of the principal provisions, in numbered articles, and perhaps supplemented by annexes.
A third part — usually referred to as ‘final clauses’ — consists of miscellaneous provisions
concerning the duration of the treaty, its ratification, the accession of third states, and the like.3a
The last part —

References

(p. 1211) the testimonium — comprises the signatures of the representatives. However, this order is
by no means essential. In the past, treaties have sometimes contained secret stipulations in an
additional part; 4 this practice must tend to disappear having regard to the requirement of
registration and publication.5 It is a question of construction whether in any particular case an
instrument referred to in a treaty forms, in the intention of the parties, an integral part of the treaty.6
In the Ambatielos case the International Court of Justice held that a Declaration annexed to a
Treaty of 1926 between the United Kingdom and Greece and providing for the settlement by
arbitration of disputes based on a Treaty of 1886 was, in the circumstances of the case, an integral
part of the former treaty.7

References

Footnotes:
1 Article 2.1(a). Similarly Art 2 of the Pan-American Convention on Treaties (see § 27, n 11.
11 As long ago as the Panama Congress of 1826 the movement for the codification of international
law among the states of the New World became prominent. In 1906 the Pan-American Conference
at Rio de Janeiro (at which the USA were represented) decided to establish a commission of jurists
for the purpose of preparing codes both of public and of private international law for submission to
a future conference. After the interruption caused by the First World War the task was actively
resumed, with the close cooperation of the new American Institute of International Law founded in
1912, and in 1925 this Institute transmitted to the Pan-American Union the texts of 30 projects of
conventions for a code of public international law (printed in AJ, Special Suppl, October 1926).
These projects were considered at a meeting of an International Commission of American Jurists in
Rio de Janeiro in April and May 1927, and 12 of them were adopted and recommended for
consideration by a Sixth Pan-American Conference, which was held in January and February 1928.
For the projects referred to, see AJ, 22 (1928), Special Suppl, January 1928. The Conference
adopted, on 20 February 1928, the following seven codifying conventions: (1) on the status of
aliens; (2) on treaties; (3) on diplomatic officers; (4) on consular agents; (5) on maritime neutrality;

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 (6) on asylum; (7) on duties and rights of states in the event of civil strife. For the texts of these
conventions see AJ, 22 (1928), Suppl, pp 124 et seq; Hudson, Legislation, iv, pp 2374–419. The
Seventh Pan-American Conference adopted on 26 December 1933, the following conventions: (1)
on the nationality of women; (2) on nationality; (3) on extradition; (4) on political asylum; (5) on
rights and duties of states. See also § 31, n 5.
2 Article 3. See generally on oral agreements, Sørensen, Hag R, 101 (1960), iii, at pp 54–8; McNair,
Treaties, pp 7–11, and § 582, n 13. On the binding character of the Ihlen declaration and other
unilateral statements, see § 459, n 4. Note the observation in the Joint Dissenting Opinion of Judges
Hackworth, Badawi, Carneiro and Rau in the case concerning Rights of United States Nationals in
Morocco that ‘usage and sufferance are only different names for agreement by prolonged conduct,
which may be no less binding than agreement by the written word’: ICJ Rep (1952), p 220. One
should probably distinguish the question whether oral statements, or unilateral declarations, create
a legal obligation, from the question whether they constitute treaties or agreements: see the
Separate Opinions of Judges Spender and Fitzmaurice in the South West Africa Cases (Preliminary
Objections), ICJ Rep (1962), at pp 474–9.
13 Article 3; see YBILC (1982), ii, pt 2, p 22, para (2). See also §§ 459, n 4, 577 and 585, n 2. In
United States v Gonzalez, AJ, 80 (1986), p 653, a conversation by telephone was held to constitute
an ‘arrangement’ with another government.
4 The Court held, in effect unanimously, that a declaration on 22 July 1919 by Mr Ihlen, the
Norwegian Foreign Minister, recorded by him in a minute and informing the Danish Minister that the
Norwegian Government would not make any difficulties in the settlement of the recognition of
Danish sovereignty over Eastern Greenland, was binding upon Norway. The Court attached
importance to the fact that the declaration was made on behalf of the Government in regard to a
question falling within the province of the Foreign Minister in reply to a request of the diplomatic
representative of Denmark. PCIJ, Series A/B, No 53, p 71; and see p 91 for the observations of
Judge Anzilotti; and Castberg, RI, 3rd Series, 5 (1924), pp 261–3; Garner, AJ, 27 (1933), pp 493–7,
for comment and citation of some precedents; and Hambro in Fundamental Problems of
International Law: Festschrift für Jean Spiropoulos (1957); Sørensen, Hag R, 101 (1960), iii, pp 54–
8. Note also the significance attached by the tribunal in the Beagle Channel Arbitration (1977), ILR,
52, p 93, to speeches made by the Argentine and Chilean Foreign Ministers in their respective
National Assemblies (at pp 186–91, 198–9).
In State of Russia v National City Bank of New York the USA Circuit Court of Appeals held that the
Minister for Foreign Affairs of a state has the right to alienate state property by the execution of an
assignment in his name: (1934) 69 F (2nd) 44, and for comment see ZöV, 4 (1934), p 695. See also
USAFFE Veterans Association Inc v The Treasurer of the Philippines, AJ, 50 (1956), pp 686–9.
See generally as to the power of a Foreign Minister to bind his state, Sørensen, Hag R, 101 (1960),
iii, pp 63–5; Blix, Treaty-Making power (1960), pp 26–41; Art 7.2 of the Vienna Convention on the
Law of Treaties 1969 (see next n). See also § 577, n 9ff.
3 In some cases a text may be adopted, and subsequently acceded to without any signature being
appended, as with the Convention on the Privileges and Immunities of the UN: see McNair, Treaties,
p 123. Some states, like Mexico and Turkey, became bound by the wide obligations of the
Covenant simply by accepting the invitation to join the League without any formal document of
adhesion having been executed.
4 See § 587.
5 As to agreements in simplified form see Hamzeh, BY, 43 (1968–69), pp 179–90; Smets, La
Conclusion des accords en forme simplifiée (1969). Within the EC the member states have
developed the practice of adopting ‘Decisions of Representatives of the Governments of the
Member States meeting within the Council [of the European Communities]’ (as distinguished from
decisions of the Council as an organ of the Communities): these decisions are regarded as
international agreements in simplified form. The decisions are not signed by the individual member

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 states, but only by the President-in-Office of the Council. In the USA-France Air Transport Services
Agreement Arbitration, an agreement was considered to have come into being tacitly, by consent
to a timetable: (1963), ILR, 38, p 182. See also German-Swiss Extradition Case (2) (1968), ILR, 60,
p 314. There probably is no good reason for denying in principle that a state may, in appropriate
circumstances, undertake a binding obligation by consenting to a resolution of an international
organisation. Ratification of a signed treaty is not the only way of assuming binding obligations in
international law. In the Advisory Opinion concerning Railway Traffic between Lithuania and
Poland (1931), PCIJ, Series A/B, No 42, the PCIJ considered that a resolution of the Council of the
League of Nations was in the nature of an engagement binding upon members. See also Conforti,
Hag R, 142 (1974), ii, at p 271ff; cf Arrangio-Ruiz, Hag R, 137 (1972), iii, pp 486–95.
6 See § 463; Fauchille, §§ 815–815(6), 822(2); McNair, Treaties, pp 30–31; Verzijl, International
Law in Historical Perspective, 6 (1973), pp 181–201. For examples of various treaty texts making
provision for the language versions of the treaty see Handbook of Final Clauses, UN Doc ST/LEG/6
(1957), pp 164–8 (this collection of final clauses has been up-dated by successive annexes to
Multilateral Treaties in respect of which the Secretary-General performs Depositary Functions,
published periodically in the series ST/LEG/SERIES E, most recently E/8 (1990)), and Blix and
Emerson, The Treaty-Maker’s Handbook (1973), pp 254–7. As to problems of interpretation which
can arise with treaties in two or more languages, see § 634.
It may happen that a treaty is negotiated in one language and subsequently other authentic
language texts are prepared. This may happen after the treaty has entered into force, or in the
period between its adoption and being opened for signature. See, eg respectively, the Protocol of
1968 (TS No 115 (1969)) whereby French and Spanish language texts were added as authentic
texts to the Convention on Civil Aviation 1944 (UNTS, 15, p 295), on which see Fitzgerald, AJ, 64
(1970), pp 364–71; and paras 2 and 3 of the Final Act of the Convention on the Regulation of
Antarctic Mineral Resource Activities 1988 (ILM, 27 (1988), pp 859, 865); see also § 634, n 1. The
task of preparing texts in the various languages usually falls to the Drafting Committee of a
Conference, as in the last-mentioned example, and as in respect of the Convention on the Law of
the Sea 1982, on the role of the Drafting Committee for which see Treves, AFDI, 27 (1981), pp 65–
85; Nelson, BY, 57 (1986), pp 169–99. As to the legal irrelevance of an additional but non-authentic
text, see Flegenheimer Claim, ILR, 25 (1958-I), pp 91, 156.
1 See § 598. Although drawn up and signed in several languages, not all need be authentic texts.
Thus with the Treaty of Peace with Italy 1947, signed in French, English, Russian and Italian, only
the texts in the first three languages were designated as authentic (Art 90). Article 10 of the Treaty
of Brest-Litovsk 1918, made one text authentic as between certain parties, and another as between
other parties. The parties may also add to the authentic texts after a treaty has been concluded:
thus Danish, Irish and English authentic texts of the Treaties establishing the EEC and Euratom were
added to the existing authentic texts by Art 160 of the Act annexed to the Treaty of Accession of
those countries to the EEC and Euratom. See Bowyer, CML Rev, 9 (1972), pp 439–55. Spanish,
Portuguese and Greek authentic texts were added later when those states joined the European
Communities. See also § 585, n 6, for other examples. See generally on plurilingual treaties, Ehrlich,
Hag R, 24 (1928), iv, pp 97–100; Hudson, AJ, 26 (1932), pp 368–72; Harv Research (1935), pt III,
Art 19(b); Hardy, BY, 37 (1961), pp 72–155; Makarov, in Recueil d’études de droit international en
hommage à Paul Guggenheim (1968), pp 403–25; Hilf, Die Auslegung Mehrsprachiger Verträge
(1973); Rosenne, Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit,
Menschenrechte: Festschrift für Hermann Mosler (1983), pp 759–84. See also §§ 463, 585 as to
treaty languages generally.
7 ICJ Rep (1961), at p 31. The Court was concerned with the form of a declaration accepting the
court’s jurisdiction. However, where a decision is taken within an institutional framework established
by treaty, the fact that it was the result of negotiation between the states concerned within the
organ empowered to adopt the decision does not give it the character of an international
agreement albeit in unusual form: Case No 38/69, Commission of the European Communities v
Italy [1970] ECR 47, 56.

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 1 See § 577.
2 By derivation, protocol (from the Low Latin and late Greek) means the ‘first-glued’ to a book, ie
the flyleaf or register of the contents of a bundle of documents, and eventually the document itself.
On the present use of the term see Hyde, ii, § 514; Satow, §§ 651–71; Vaughan Williams, Hag R
(1923), iii, p 256; Genet, iii, pp 530–34; Starke, Studies in International Law (1965), pp 67–80;
Satow, pp 243–5.
A protocol will usually be an instrument supplementary to a principal treaty, and may be concluded
at the same time as the treaty, or later. Protocols are often declared to be an integral part of the
treaty. While usually dependent upon the treaty, so that if it is terminated so too is the protocol, a
protocol may be capable of continuing in force after the principal treaty has come to an end.
3 See McNair, Treaties, pp 22–5; Brandon, AJ, 47 (1953), pp 49–69; Myers, AJ, 51 (1957), pp 574–
605; Le Roy and Saidenberg, Nomenclature des traités et actes diplomatiques de la France en
1964 (1967); Genet, iii, pp 476–538. For a consideration of various forms of international
agreements, and their varying degrees of legal effectiveness, see Baxter, ICLQ, 29 (1980), pp 549–
66. As to concordats, see § 101, n 3.
3 As to the foreign service of the Vatican City see Benson, Vatican Diplomatic Practice (1936) and
de la Brière, RI (Paris), 15 (1935), pp 340–46; Graham, Vatican Diplomacy (1959). See also § 461, n
1. As to the position of diplomatic agents of Italian nationality accredited to the Holy See, see
Morelli, Rivista, 26 (1934), pp 42–56.
As to concordats see Bierbaum, Das Konkordat (1928); Lange-Ronneberg, Die Konkordate (1929);
Giannini, I concordati post-bellici (1930); Huber, Verträge zwischen Staat und Kirche im
Deutschen Reich (1930); Wagnon, Concordats et droit international (1935); de la Brière, Hag R,
62 (1938), i, pp 371–464; Ehler, Hag R, 104 (1961), iii, pp 1–63 (with bibliography at p 65); Lucien-
Brun, AFDI, 18 (1972), pp 225–33. In a case decided in 1934 the Supreme District Court of Bavaria
based its decision on the view that concordats had the same internal validity as treaties: Re a
Nun’s Dress, AD, 7 (1933–34), No 176. See also Concordat (Germany) Case, ILR, 24 (1957), p 592.
The Holy See has signed and ratified the Convention on the Law of Treaties 1969.
As to passports issued by the Vatican City, see Turack, BY, 43 (1968–69), pp 212–14.
4 The designation alone may be one element amongst others to be taken into account in
considering whether the parties had, as a matter of substance, come to an arrangement which
fulfilled the requirements for a treaty. For an instrument referred to as an ‘agreement’ (the UK-
Ireland Sunningdale Agreement) being held to be only a communiqué containing statements of
policy rather than an agreement or treaty see Boland v An Taoiseach [1974] IR 338.
5 The distinction may be significant in municipal law, as with the distinction made in the USA
between treaties, which can only be ratified by the President with the consent of the Senate, and
agreements, which do not require such consent, see Moore, v, § 752; Crandall, Treaties: their
Making and Enforcement (1916), §§ 56–61; and below, § 636, n 4. See also Ministère Public v
Simon (1974), ILR, 77, p 387. As regards the assertion that only such compacts require ratification
as bear the title ‘treaties’ or ‘conventions’, see § 603.
4 These account for more than half of the international engagements entered into by the USA
since 1789. There has been an increasing tendency to assert that the machinery of Art 2, § 2, of
the Constitution was never intended to be exclusive; that executive agreements, made with the
concurrence of both Houses of Congress, possess the same international and domestic authority
as treaties ratified with the consent of two-thirds of the Senate; and that there is no type of treaty
which cannot be entered into by way of executive agreement. See McClure, International
Executive Agreements (1941); Hackworth, v, pp 390–433; Levitan, Ill Law Rev, 35 (1940), p 369;
Catudal, George Washington Law Review, 10 (1942), p 653; Quincy Wright, AJ, 38 (1944), pp 341–
355, and International Conciliation, May 1945, Pamphlet No 411; Borchard, AJ, 38 (1944), pp 637–
43; Herbert Wright, ibid, pp 643–50; McDougal and Lans, Yale LJ, 54 (1945), pp 181–251 and 534–
615; Borchard, ibid, pp 616–64. See also Dennison, The Senate Foreign Relations Committee

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 (1942); Westphal, The House Committee on Foreign Affairs (1942); Colegrove, The American
Senate and World Peace (1944); Evans, BY, 30 (1953), pp 178–205; Oliver, AJ, 51 (1957), pp 606–
11; Byrd, Treaties and Executive Agreements in the United States (1960); McNair, Treaties, pp
62–5; Surrency, ICLQ, 14 (1965), pp 602–12. See also USAFFE Veterans Association Inc v
Treasurer of the Philippines, AJ, 50 (1956), p 686. For reluctance on the part of US courts to
interfere with the treaty-making power of the President, see, eg Aris Gloves Inc v United States
(1970), ILR, 56, pp 536, 543; and see Dames and Moore v Regan (1981), ILR, 72, p 271, on which
see § 158, n 12. As to the duration of executive agreements, and in particular the extent to which
they bind a successor administration, see Lissitzyn, AJ, 54 (1960), pp 869–73. See also § 19, nn 94,
95, and § 607, nn 3, 10, and 11.
6 ICJ Rep (1962), at p 331.
7 In the Aegean Sea Continental Shelf Case (Jurisdiction), ICJ Rep (1978), p 1, the ICJ observed
‘that it knows of no rule of international law which might preclude a joint communiqué from
constituting an international agreement’ (at p 39): the communiqué in question had been neither
signed nor initialled. The Court concluded that, in the light of its terms and the context in which it
was agreed and issued, it did not have the binding effect contended for (at pp 43–4). See Merrills,
LQR, 95 (1979), pp 340, 343–5. As to the so-called ‘Gleneagles Agreement’ of 1977 (concerning
sporting links with South Africa), which was also in the form of a communiqué, see § 439, n 17. See
also the so-called ‘Luxembourg Communiqué (or, Accords)’ of 1966, which concerned voting
practices in the Council of the European Communities: as to its legal effect, see Lasok and Bridge,
Law and Institutions of the European Communities (4th ed, 1987), pp 205–8. See also Scindia
Steam Navigation Co Ltd v Union of India (1961), ILR, 53, pp 112, 124–8. As to obligations arising
from an agreed resolution see Case No 141/78, French Republic v United Kingdom [1979] ECR
2923. See also § 582, n 23, as to unilateral but parallel statements.
17 GA Res 3068 (XXVIII) (1973). See generally on apartheid and international law, Witkin, Harv ILJ,
18 (1977), pp 605, 621–6; Kiapi, Indian JIL, 17 (1977), pp 57–65. Protection from racial
discrimination (of which apartheid is a clear manifestation) is an obligation owed by all states erga
omnes: Barcelona Traction Case, ICJ Rep (1970), pp 3, 32. In the Namibia (Legal Consequences)
Case the ICJ held that South Africa, by instituting the system of apartheid, had committed ‘a flagrant
violation of the purposes and principles of the Charter’: ICJ Rep (1971), p 57.
See also the International Declaration against Apartheid in Sport 1977 (GA Res 32/105 M), and the
Convention against Apartheid in Sport 1985 (GA Res 40/64 G). See also the statement on apartheid
in sport, made by Commonwealth Heads of Government at their meeting in Gleneagles, Scotland,
on 15 June 1977 (and often referred to as the ‘Gleneagles Agreement’): Commonwealth Year Book
(1978), pp 53–4. This ‘agreement’ was not a treaty, and does not give rise to rights and obligations
in international law. For discussion of the Gleneagles ‘Agreement’, see Elkind and Shaw, BY, 55
(1984), pp 189, 191–206. As to certain legal proceedings in New Zealand arising out of the tour of
that country by a South African rugby team see ibid, pp 189–248.
23 See, eg Cohen, AS Proceedings, 66 (1972), pp 110–11.
8 In this respect it may be doubted whether the ILC was wholly correct in stating in Commentary
(Treaties), Art 2, para (2) (YBILC (1966), ii, p 188) that, inter alia, a memorandum of understanding
was ‘undoubtedly’ an international agreement subject to the law of treaties. An ‘understanding’
may well be an understanding and no more, intended and so worded as to be something less than
an agreement creating legal rights and obligations. Taken in its context the Commentary was
primarily making the point that there are many kinds of single, though informal, instruments which,
while not ‘treaties’ in a narrow sense, are nevertheless instruments to which the law of treaties can
apply (and often does), thus supporting the ILC’s decision to use the term ‘treaties’ in a generic
sense. See generally on memoranda of understanding, Aust, ICLQ, 35 (1986), pp 787–812. See also
AJ, 81 (1987), pp 939–40, as to the non-binding status of the understandings reached by President
Kennedy and Chairman Kruschev, by which the Cuban missile crisis of 1962 was resolved. See
also Opinion 1/75 [1975] ECR 1355 holding an understanding concluded within the OECD to be,

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 given its substantive content, an agreement. See also § 582, n 21. Note also § 582, n 19, and § 577,
nn 21–4, as to undertakings leaving so great an element of discretion as to make the existence of
legal rights and obligations questionable. That an instrument does not constitute a treaty does not
mean that it does not have legal effect: see Interpretation of the American Declaration of the
Rights and Duties of Man, ILM, 29 (1990), pp 379, 390–1.
21 The ICJ has noted that, for the creation of legal relations, the principal emphasis is placed on
the intentions of the states concerned, given that ‘the question of form … is not a domain in which
international law imposes any special or strict requirements’: Nuclear Tests Case, ICJ Rep (1974),
pp 267–8; see also the Temple of Preah Vihear Case, ICJ Rep (1961), pp 31–2.
See generally Münch, ZöV, 29 (1969), pp 1–11; Schachter, AJ, 71 (1977), pp 296–304, and Hag R,
178 (1982), v, pp 123–32; Virally, Annuaire, 60 (1) (1983), pp 166–257, 328–57; Tunkin, Law and
Force in the International System (1985), pp 129–44; Aust, ICLQ, 35 (1986), pp 787–812;
Mullerson, AJ, 83 (1989), pp 509–12; Rosenne, Developments in the Law of Treaties 1945–1986
(1989), pp 85–123; and see § 586, n 8.
19 As to certain Declarations accepting the compulsory jurisdiction of the ICJ, see § 577, nn 21–4.
21 See YB of the ICJ (1957–8), p 199 (as to France) and (1984–5), pp 99–100 (as to the USA).
9 Thus the originating note will often set out a proposal, invite the other state to agree to it, and
suggest that if it does agree that state’s reply to that effect and the originating note should together
constitute an agreement; the note in reply will agree with the proposals and confirm that the two
notes constitute an agreement.
10 See on the subject Weinstein, BY, 29 (1952), pp 205–26. See also Fitzmaurice, BY, 15 (1934), p
120. At least one-third of the treaties registered with the UN are in the form of exchanges of notes.
1 The title of a treaty may suggest ‘the spirit and intention of the Treaty as a whole’: Beagle
Channel Arbitration (1977), ILR, 52, pp 93, 131.
2 Paul You, Le Préamble des Traités Internationaux (1941), and RI (Geneva), 20 (1942), pp 25–45.
See also the Asylum Case, ICJ Rep (1950), p 282.
3 The preamble forms part of the context of a treaty for purposes of interpreting its terms: see §
632, para (3).
3a See Handbook of Final Clauses, UN Doc ST/LEG/6 (1957) (this collection of final clauses has
been up-dated by successive Annexes to Multilateral Treaties in respect of which the Secretary-
General performs Depositary Functions, published periodically in the series ST/LEG/SERIES E, most
recently E/8 (1990)).
4 The matter is treated with all details by Pradier-Fodéré, ii, §§ 1086–99.
5 See § 663.
6 It is common for states to provide expressly that some associated instruments are integral parts
of a treaty, as in the case of protocols (see § 586, n 2) and agreed minutes (see, eg in Art XIX of
the 1984 Fisheries Agreement between the European Communities and the USA: ECTS No 3
(1985)). However, cf the decision adopted by EC Ministers on the occasion of the signing of the
Single European Act 1986 was distinct from that Act and did not itself constitute a treaty:
Parliamentary Debates (Commons), vol 99, cols 433, 645 (written answers, 16 and 20 June 1986).
7 ICJ Rep (1952), pp 41–3. The main reason of the decision of the Court was the fact that in the
instruments of ratification and registration the Treaty and the Declaration were treated as a whole.
But see on the subject the Dissenting Opinions of Judges McNair (at p 60) and Basdevant (at p 70);
and for comment see Fitzmaurice, BY, 33 (1957), pp 255–66.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Oxford University Press - Master Gratis Access; date: 21 March 2017